Changing the law on abortion since legislation was devolved and improving access correspondence: FOI release

Information requested

You asked for:

• All correspondence, minutes and emails in relation to changing the law on abortion since legislation was devolved on 23 May 2016.
• All correspondence, minutes and emails in relation to improving access to abortion services for adolescents and young women since 23 May 2016.

On 16 September, you clarified the above request as follows: ‘I am only seeking information in relation to the law on abortion and access to abortion services in Scotland. On the first bullet point, I am only looking for references to the law on the conditions for accessing abortions.’

Response

I enclose a copy of some of the information you requested at Annex B.

Please note that where only a minority of a document or email is within the scope of your request, we have provided extracts.  Where the Scottish Government’s response to a number of letters (with the exception of the date and recipient) is identical, we have only provided it once.

In addition, please note that the article by the University of Strathclyde regarding analysis of the Scotland Act 2016 continues to be protected by the Copyright, Designs and Patents Act 1988 (pages 31 to 34).  You are free to use it for your own purposes, including any non-commercial research you are doing and for the purposes of news reporting.  Any other re-use, for example commercial publication, would require the permission of the copyright holder.  

Information you receive which is not subject to Crown Copyright continues to be protected by the copyright of the person, or organisation, from which the information originated.  You must ensure that you gain their permission before reproducing any third party (non Crown Copyright) information.

Some of the information you have requested is available online at the following weblinks:

• Answers to Parliamentary Questions S5W-16699, 16700 and 16701 –
  https://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-16699&ResultsPerPage=10
  https://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-16700&ResultsPerPage=10 https://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-16701&ResultsPerPage=10
• Engender report –
  https://www.engender.org.uk/content/publications/Our-bodies-our-choice---the-case-for-a-Scottish-approach-to-abortion.pdf

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.  If, however, you do not have internet access to obtain this information from the websites listed, then please contact me again and I will send you a paper copy.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 30(b)(i) and (ii) (free and frank advice and exchanges of views), section 30(c) (prejudice to the effective conduct of public affairs) and 38(1)(b) (personal information) of FOISA apply to that information.  The reasons why those exemptions applies are explained in Annex A to this letter.

Reasons for not providing information - Annex A
An exemption applies

An exemption(s) under section 38(1)(b) of FOISA applies to some of the information you have requested because it is personal data of a third party, in other words names and contact details of individuals, such as members of the public, non-senior Scottish Government staff and staff in external organisations, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.  This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

Exemptions apply, subject to the public interest test

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested.  These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation.  The exemptions recognise the need for officials and Ministers to have a private space within which to seek advice and views before reaching a settled public position, for example in relation to the Scottish Government’s Programme for Government.  Disclosing the content of free and frank emails and briefing material on abortion law and policy will substantially inhibit such briefing in the future, particularly because these discussions relate to a sensitive issue which is subject to widely differing and often strongly held opinions amongst both stakeholders and members of the public.

These exemptions are subject to the ‘public interest test’.  Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemptions.  We have found that, on balance, the public interest lies in favour of upholding the exemptions.  We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.  However, there is a greater public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers and other officials in developing a public position on matters such as access to abortion services for particular groups or on abortion law.  They need full and candid advice from officials to enable them to set out their position publicly.  Ddisclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to a small amount of the information requested.  It is essential for the public to be able to communicate freely and frankly with Ministers on a range of issues, including abortion.  Disclosing the content of some of their views when they make unfounded allegations about third parties, particularly without the consent of either the person writing the letter or the organisations who they have made allegations about, would be likely to lead to significant misunderstandings about and damage to the reputations of those third party organisations.

This exemption is subject to the ‘public interest test’.  Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.  We have found that, on balance, the public interest lies in favour of upholding the exemption.  We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.  However, there is a greater public interest in allowing a private space within which members of the public can communicate strongly held views with Ministers or officials.  Whilst they are entitled to express their views, there is no public interest in sharing those more extreme views more widely where they are known to be incorrect and are likely to cause significant harm to the reputations of those organisations the allegations are made against.   

About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI-19-02106 - Annex B

File type

45 page PDF

File size

2.5 MB